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Leshko v. Servis

September 9, 2005

KAREN M. LESHKO, APPELLANT
v.
GREG SERVIS; JUDY M. SERVIS; DAUPHIN COUNTY SOCIAL SERVICES FOR CHILDREN AND YOUTH; SANDRA MOORE, AGENCY DIRECTOR, DAUPHIN COUNTY SOCIAL SERVICES FOR CHILDREN AND YOUTH; DAUPHIN COUNTY; RICK WYNN, HUMAN SERVICES DIRECTOR, DAUPHIN COUNTY; JEFFREY HASTE, DAUPHIN COUNTY COMMISSIONER; LOWMAN HENRY, DAUPHIN COUNTY COMMISSIONER; ANTHONY PETRUCCI, DAUPHIN COUNTY COMMISSIONER



On appeal from the United States District Court for the Middle District of Pennsylvania District Court No. 03-cv-00889. District Judge: The Honorable Yvette Kane.

The opinion of the court was delivered by: Smith, Circuit Judge.

PRECEDENTIAL

Argued April 1, 2005

Before: ALITO, SMITH, and FISHER, Circuit Judges.

OPINION

We weave our way in this appeal through the Supreme Court's labyrinthine state action jurisprudence. The question presented is whether foster parents are state actors for purposes of liability under 42 U.S.C. § 1983. We hold that they are not.

I.

A.

When appellant Karen M. Leshko was two-and-a-half years old, her foster mother, appellee Judy Servis, placed her in the kitchen sink of the Servis home to wash her. Next to the sink was a large pot of exceedingly hot water. Servis left the room. Little Karen pulled the pot over on herself, sustaining severe burns across much of her abdomen, legs and mid-section. Neither Servis nor her husband sought medical treatment for Karen for more than twelve hours.

When she turned eighteen, Karen ("Leshko") sued Dauphin County (Pennsylvania) Social Services for Children and Youth, Dauphin County, and various County officials under § 1983 for depriving her of her Fourteenth Amendment right to be free from physical harm, and under state negligence and constitutional theories. Leshko also sued the Servises, alleging liability under § 1983 and state tort law. The District Court dismissed the complaint in its entirety for failure to state a claim. Leshko appeals only the District Court's dismissal of her § 1983 claim against the Servises, inasmuch as the Court held that the Servises were not state actors.

B.

Leshko was placed in the Servis home in 1985 by the Dauphin County Social Services for Children and Youth after being removed from her mother. The record reveals neither the reason for Leshko's removal, nor whether Leshko's mother consented to the removal. The laws governing foster care in Pennsylvania are substantially the same today as they were in 1985. A child in Pennsylvania can be placed in foster care after being adjudicated a "dependent child." 42 Pa.C.S. § 6351; In re Frank W.D., 462 A.2d 708, 711 (Pa. Super. Ct. 1983). A dependent child in Pennsylvania is one deemed by the Commonwealth to be abandoned, illegally offered for care or adoption, or lacking "proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals." 42 Pa.C.S. § 6302; Matter of Adoption of J. S. H., 445 A.2d 162, 164 (Pa. Super. Ct. 1982). Foster care is not the only option available for dependent children; a court might alternatively order a dependent child to remain with his parents or guardian under court supervision, be transferred to the custody of an authorized private organization, or be transferred to the custody of an authorized public agency. 42 Pa.C.S. § 6351; In re Lowry, 484 A.2d 383, 385-86 (Pa. 1984). State regulations govern the foster care relationship, and government funding is provided. See 35 Pa. Code § 3700; In re Adoption of Crystal D.R., 480 A.2d 1146, 1150 (Pa. Super. Ct. 1984). Apparently for the first time, a Pennsylvania court held in 2002 that foster parents in Pennsylvania are county "employees" under Pennsylvania's Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8501. Patterson v. Lycoming County, 815 A.2d 659, 661 (Pa. Commw. Ct. 2002).*fn1

II.

The Fourteenth Amendment provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law . . . ." U.S. CONST. amend. XIV, § 1. This Amendment governs only state action, not the actions of private citizens or organizations. Rendell-Baker v. Kohn, 457 U.S. 830, 837-38 (1982) (citing, inter alia, Civil Rights Cases, 109 U.S. 3, 11 (1883)). Section 1983 subjects to liability those who deprive persons of federal constitutional or statutory rights "under color of any statute, ordinance, regulation, custom, or usage" of a state. See 42 U.S.C. § 1983. We consider actions "under color of law" as the equivalent of "state action" under the Fourteenth Amendment. Rendell-Baker, 457 U.S. at 838; Benn v. Universal Health Sys., Inc., 371 F.3d 165, 169 n.1 (3d Cir. 2004). Thus, to state a claim of liability under ยง 1983, Leshko must allege that she was deprived of a federal constitutional or statutory right by a state actor. See Benn, 371 F.3d at 169-70. The Servises concede that Leshko alleges a deprivation of a ...


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